Background
Mississippi enacted House Bill 1193 in April 2025 to restrict diversity, equity, and inclusion programs and related activities at public schools and colleges. The law prohibits specified DEI programs, training, curricular promotion, employment and contracting practices, and adverse action against students who disagree with identified DEI concepts. It also contains exceptions for activities including scholarly research, creative work, certain student-group activities, accreditation compliance, and compliance with state or federal law.
Teachers, professors, students, parents, unions, and advocacy groups brought a pre-enforcement facial challenge under the First and Fourteenth Amendments. District Judge Henry Wingate entered a temporary restraining order and later a statewide preliminary injunction. The TRO contained parties, factual assertions, quotations, declarations, and a case citation that were absent from the record or nonexistent; Wingate later acknowledged that a law clerk had used artificial intelligence in drafting an earlier version. Mississippi officials appealed the preliminary injunction.
The Court’s Holding
The Fifth Circuit vacated the preliminary injunction. It held that the district court failed to conduct the application-by-application analysis required for a facial First Amendment challenge under Moody v. NetChoice, improperly treated uncertainty as a reason to grant extraordinary relief, placed insufficient weight on the plaintiffs’ burden to show likely success, and misread the requirement that injunctive relief be limited to what is necessary to provide complete relief to the plaintiffs.
The court did not finally decide whether H.B. 1193 is constitutional. Instead, it construed the law’s scope and directed the district court on remand to identify its lawful and unlawful applications and determine whether the unconstitutional applications substantially outweigh the constitutional ones. The panel stated that the law regulates public educational institutions and educators, not students; that curricular and other government speech generally may be controlled by the state; and that personal speech by public educators must be analyzed under the applicable public-employee speech framework. It also instructed that a facial vagueness challenge requires the law to be impermissibly unclear in all its applications.
The panel further ordered the case reassigned to a different district judge. It concluded that the original judge’s reliance on fabricated material, failure to explain why the corrected orders remained justified, and legal errors created substantial concern about his ability to set aside his prior views and about the appearance of justice. Judge Haynes concurred in the judgment, emphasizing the need for fuller examination of H.B. 1193 and protection for teaching students not to discriminate.
Key Takeaways
- The Fifth Circuit vacated the preliminary injunction but did not uphold H.B. 1193 on the merits; the constitutional challenge remains pending on remand.
- A facial First Amendment challenge must compare the statute’s unconstitutional applications with its constitutional applications, rather than rely on examples that are merely arguably affected.
- The panel construed H.B. 1193 as regulating public institutions and educators, not students, while recognizing statutory exceptions for scholarly, creative, accreditation-related, and other protected activities.
- The case must be assigned to a new district judge because the defective orders and the handling of AI-generated fabrications undermined confidence in further proceedings before the original judge.
Why It Matters
The decision supplies Fifth Circuit guidance for future challenges to state restrictions on DEI programs in public education, particularly concerning government speech, public-employee speech, facial overbreadth, vagueness, and the permissible scope of preliminary injunctions. It also provides a stark warning that judges remain responsible for verifying AI-assisted work: fabricated facts and authorities can invalidate judicial orders and, in extraordinary circumstances, require reassignment of the entire case.